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Results: 1 - 15 of 19
Ainslie Benedict
View Ainslie Benedict Profile
Ainslie Benedict
2013-05-28 11:14
Good morning, Madam Chair, and members of the committee. The Women's Legal Education and Action Fund appreciates the opportunity to appear this morning before this committee.
LEAF is a national organization dedicated to promoting substantive equality for women through legal action, research, and public education. LEAF has intervened in over 150 cases on substantive equality since its founding in 1985, and is a leading expert in the inequality and discrimination experienced by Canadian women. Central to LEAF’s commitment to substantive equality is addressing the inequalities suffered by women who experience discrimination on multiple or intersecting grounds, such as poverty, aboriginal identity, disability, race, sexual orientation, and religion.
In the landmark case of Janzen v. Platy Enterprises in 1989, Chief Justice Dickson cited LEAF's factum in the unanimous decision of the court, declaring that sexual harassment is a form of sex discrimination because it denies women equality of opportunity in employment because of their sex. LEAF has continued to advocate on behalf of women who experience sexual harassment in the workplace.
Harassment on the job is a serious problem for Canadian women, and I know you've been hearing from many witnesses saying this. In the 2011 public service employee survey—I know other witnesses have quoted that survey as well—of the almost 200,000 respondents, 17%, or 33,000 people, indicated they had been a victim of harassment at least once in the previous two years. An additional 12% had experienced harassment at least twice over the course of the previous two years. Only 31% of the respondents felt their department or agency was working hard to create an environment that was free from harassment and trying to prevent it.
Unfortunately, that survey did not track any data for sexual harassment specifically, but LEAF submits, and I know from my experience working in this field, workplace harassment often does involve an element of discrimination based on gender.
Harassment has a serious negative effect on employees who are victims, but it also has an impact on employers. Employees who are harassed can suffer from all sorts of physical and psychological ailments—headaches, all sorts of stress-related difficulties, anxiety, post-traumatic stress disorder, and so on—ultimately forcing them to take sick leave, and as we see way too frequently, forcing them to leave the workplace altogether. This, of course, has a financial impact on the individual and can derail a career completely.
For an employer, the impacts are diminished morale throughout the workplace, high staff turnover, and huge loss of time as other employees are drawn into an investigation as witnesses, or simply as something going on in the department.
Current complaint avenues and channels are confusing for an individual. There's no clear place to go. We have legislation. We have the Canadian Human Rights Act that states employees are entitled to a workplace free from harassment. The Canada Labour Code requires employers to have anti-harassment policies in place and to do training. In October of 2012 the new Treasury Board policy on harassment was introduced. This was developed through consultation with all of the public service unions. On paper the policy looks very good. Unfortunately, it is going to have the same problems that have traditionally existed, and I'll describe what those are.
It's the application of the policy that is of concern. The new policy still relies on a person bringing a complaint forward. As this committee has heard, in many workplaces that's a very difficult thing to do. The institutional culture is also known to discourage that. That same lack of willingness or ability to report a complaint exists in many places, not only the notorious ones, however.
No matter how well written a policy may be, if it's triggered by an individual having to complain internally to her direct supervisor, who perhaps himself or herself is involved in the climate of harassment—may have been part of it, may have a relationship, be a friend, whatever, of the person who is being accused of harassment—it's going to be very uncomfortable for the complainant to bring forward a complaint of harassment and expect that it's going to be dealt with in a fair manner.
Even if the internal complaint process is triggered, and if the individual comes forward, there's often a feeling that there's little support or information given during the process about the steps being taken, or even about the outcome.
There are no real remedies at the end of the day, no perfect solutions. The ideal solution right now is that the complaint will be upheld, that some form of discipline will be upheld. What we see, though, is that the harasser frequently remains in the department, leaving the complainant still feeling vulnerable. It's not vindication; it doesn't make life easier for the most part.
We see the pattern again for the complainant—the prior harassment, the ongoing harassment, frequently leads to the health symptoms persisting and the individual leaving the workplace entirely, ending a career. Even where a toxic workplace has been identified, the available processes are still not going to ensure that harassment is addressed. In this way, the inequality is perpetuated.
There currently is one third-party model that an individual can use. It sounds like a solution but it's not. It's the Canadian human rights process. Unfortunately, it's cumbersome, awkward. It's a two-step process. First, a complaint has to go to the commission, but it's hugely understaffed. In 2011, there were two full-time and three part-time commissioners who reviewed 1,914 potential complaints and referred only 129 of them to the tribunal. So the commission acts as a gatekeeper and refers only a very small number of cases.
The commission also looks to see if there's another avenue of recourse for the complainant. If there is, that is where the complainant has to go. So this is not an effective avenue of recourse for individuals in the federal workplace. The tribunal itself is in very bad shape right now. It currently has an acting chair, one full-time member, and seven part-time members. In 2012, the tribunal released only 30 decisions.
How do we improve the system? The biggest difficulty is that the individual has to report within her environment, where there could have been decades of harassment. There needs to be some mechanism that would allow a woman to talk about her complaint; learn what the remedies and possible avenues are, as well as their pitfalls, timing, and possible repercussions; and get reassurance that her career is not going to end by filing a complaint. That really is the impediment right now.
We need a third-party, neutral avenue where complainants can go. I believe the next witness you will be hearing, the Law Society of Upper Canada, will be talking about a new direct-access model that has been developed in the legal area. It's not necessarily applicable here, but it's an interesting concept. It gives a freedom that currently does not exist under even this revamped Treasury Board policy.
View Pierre Jacob Profile
NDP (QC)
Since I have a bit of time left, I will ask a question about the Canadian Human Rights Tribunal.
Can you tell me what the specific impact of repealing section 67 of the Canadian Human Rights Act will be on the Canadian Human Rights Tribunal's workload?
View Rob Nicholson Profile
CPC (ON)
The main estimates, with respect to any changes that have taken place to the Canadian Human Rights Act, indicate an increase in funding of $0.04 million for the particular implementation of the section that you just indicated, Monsieur Jacob. There is money set aside for that.
Susheel Gupta
View Susheel Gupta Profile
Susheel Gupta
2012-11-27 15:36
I do. Thank you, Mr. Chair.
Good afternoon, and thank you very much, Mr. Chair and honourable members, for the invitation to appear before your committee today as you deliberate Bill C-279.
I thought I would begin by taking a few moments to discuss the mandate of the Canadian Human Rights Tribunal, as it will inform the scope of my presentation. I will then provide an overview of the legal principles that govern us when dealing with discrimination complaints, and in closing, I will provide the committee with some information on cases decided by the tribunal that raised issues of gender identity or gender expression.
The Canadian Human Rights Tribunal is one of the two administrative agencies created by the Canadian Human Rights Act, or the CHRA. The other one is the Canadian Human Rights Commission. While the commission's mandate is multi-faceted and includes a wide range of powers, duties, and functions, the statute has only assigned one main function to the tribunal, and that is the adjudication of complaints.
In the context of the CHRA, this adjudication process is referred to as an inquiry. An individual who believes that discrimination has occurred, within the meaning of the CHRA, can file a complaint with the commission. If the commission believes that an inquiry is warranted, it triggers the adjudicative process by making a request of the tribunal to inquire into the complaint.
The inquiry mandated under the CHRA has been described as quasi-judicial, which essentially means court-like. Hence, the tribunal has many of the powers and attributes of a court. It is empowered to find facts, to interpret and apply the law to those facts before it, and to award appropriate remedies.
The tribunal hearings have much the same structure as a formal trial before a court. The parties before the tribunal lead evidence, call and cross-examine witnesses, and make submissions on how the law should be applied to the facts.
This Parliament only assigned to the tribunal the role of adjudication. The tribunal cannot be involved in crafting policy. It has no regulatory role vis-à-vis discriminatory practices in the federal workplace, nor does it have a public advocacy role. These roles are assigned to other bodies.
A number of consequences flow from the court-like structure and focused mandate of the tribunal. First, its members are required to maintain a high degree of independence from the executive branch of government, in particular from our portfolio department, the Department of Justice.
Furthermore, to conserve their impartiality, it is important for the adjudicator of our tribunal to adopt and retain a position of neutrality in respect of issues that can and will be debated in cases they may be called upon to decide.
In the context of your current study, these principles prevent tribunal members, including me, from issuing opinions on many of the matters that will be discussed as you review Bill C-279, which is not to say that tribunal members never make findings on issues of gender identity or gender expression. On the contrary, they have been required to do so previously and will likely be called upon to do so in the future. However, they must make these findings in the context of their adjudicative mandate, based on the submissions of the parties in a particular case, along with the evidence led and the applicable legal principles.
This leads me to my next topic. What are the legal principles that the tribunal applies to discrimination complaints? How do we define discrimination?
The answer to these questions originates in our enabling legislation, the CHRA. A useful starting point is section 4, which succinctly sets out the basic liability scheme. Essentially, in this statute Parliament has identified a number of discriminatory practices. Anyone found by the tribunal to be engaging in or to have engaged in a discriminatory practice may be made the subject of a remedial order.
What does the CHRA consider a discriminatory practice?
There are a number of acts and courses of conduct so designated, including denying access to services facilities or accommodation; refusing to employ or continue to employ an individual; establishing a policy or practice that deprives an individual or class of individuals of employment opportunities; and harassment and adverse differentiation, both in matters related to employment as well as in the provision of services, facilities, or accommodation.
However, almost every discriminatory practice in the CHRA, by definition, must be based on a prohibited ground of discrimination. Here is where we arrive at some of the issues raised by Bill C-279.
The CHRA designates 11 prohibited grounds of discrimination, namely, race, national ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability, or conviction for an offence for which a pardon has been granted or in respect of which a record of suspension has been ordered.
As has been alluded to in the House of Commons debates, to the extent that the tribunal has dealt with transgender issues thus far, it has done so within this statutory framework of prohibited grounds, in particular, under the grounds of sex and disability. However, the tribunal has never had to decide a case where the parties put forward sharply opposed arguments on the question of whether or not gender identity or gender expression is protected by the act.
If you will allow me to elaborate, the tribunal has had four cases dealing with gender identity or gender expression that it has been required to adjudicate.
In the first case, the tribunal has found, on the point that's most relevant to this current discussion, and I quote:
There is no dispute that discrimination on the basis of Transsexualism constitutes sex discrimination as well as discrimination on the basis of a disability.
There have been three subsequent cases that raise gender identity and gender expression issues. In all of them, the tribunal found that discrimination on these grounds fell within the prohibited grounds protected by the CHRA. However, in each of the cases, the key issue relevant to this committee's deliberation does not appear to be a point of contention between the parties.
As you can see, we haven't dealt with a large number of these kinds of cases. That said, in considering the number of cases heard by the tribunal on the given subject matter, there are several important considerations that should be taken into account.
First, not all federal discrimination matters become complaints filed with the commission. Other agencies and boards have concurrent jurisdiction over CHRA matters.
Second, of the discrimination complaints filed with the commission, only a small subset were referred to the tribunal for inquiry. As my friends from the commission have already indicated, some of those complaints end up being resolved through ADR practices or mediation under their process.
Third, of those complaints that are referred to the tribunal, a significant number are resolved by tribunal members mediating the complaints to facilitate settlements by the parties, thus never resulting in a hearing or an inquiry ever being conducted.
In closing, I would simply like to say that I hope this presentation has been of assistance to the committee.
Thank you.
View Françoise Boivin Profile
NDP (QC)
So we're not coming out of the sky with something, or the earth is going to open and something brand new is here.
I just want to reflect a little on this idea of going to consult various groups. We are not talking about a government bill, after all, but a private member's bill. Everyone understands that. The principles are not necessarily the same. Perhaps those comments are more for my colleagues. We agree on that.
Mr. Gupta, you were asked the question specifically, but you did not really answer it, I feel, on the basis that your tribunal is quasi-judicial and therefore you should not express an opinion on certain things. But your text does; it says:
As has been alluded to in the House of Commons debates, to the extent that the tribunal has dealt with transgender issues thus far, it has done so within the statutory framework of prohibited grounds, in particular under the grounds of sex and disability. However, as I will explain, the tribunal has never had to decide a case where the parties put forward sharply opposed arguments on the question of whether or not gender identity or gender expression is protected by the act.
If it is believed that this is a recognized right—and I am not asking you to express an opinion on that—is it not better for the tribunal to have something in writing rather than to have to make a legal interpretation? Would it not be preferable to have something written down in black and white?
I'll address this to Mr. Gupta, since you tried to avoid answering this.
Susheel Gupta
View Susheel Gupta Profile
Susheel Gupta
2012-11-27 16:17
I didn't try to avoid it. The tribunal's role is really to apply the law as Parliament has written it and according to instructions received from the courts. We really don't take a position on whether including the definition would assist the tribunal. I stated as fact in my opening remarks that transgender issues have been found to be discrimination-based on either a combination of sex and/or disability.
View Brent Rathgeber Profile
Ind. (AB)
Thank you.
You said in your opening presentation that the tribunal is quasi judicial, which essentially means court-like. I want to challenge that proposition.
You'll agree with me that a complainant before the tribunal is not required to bankroll his own legal counsel.
View Brent Rathgeber Profile
Ind. (AB)
You'll agree with me that the strict rules of evidence are relaxed at tribunal hearings, including the admissibility of hearsay.
Susheel Gupta
View Susheel Gupta Profile
Susheel Gupta
2012-11-27 16:23
That is correct. It's up to each individual member to decide, in their own case, how strict to be with the rules of evidence.
Susheel Gupta
View Susheel Gupta Profile
Susheel Gupta
2012-10-16 10:01
Good morning. Thank you, Madam Chair and honourable members, for the invitation to appear before your committee today as you begin your very important study of sexual harassment in federally regulated workplaces. I am joined by two colleagues from my office: Rachel Boyer, executive director and registrar at the Canadian Human Rights Tribunal, and Greg Miller, legal counsel.
Upon review of the questions that the committee seeks to address with its study, I thought I would begin by taking a few moments to discuss the mandate of the Canadian Human Rights Tribunal, as it will inform the scope of my presentation. I will then provide an overview of the legal principles that govern us when dealing with complaints of sexual harassment. In closing, I will provide the committee with some statistical information that may be of interest.
The Canadian Human Rights Tribunal is one of the two administrative agencies created by the Canadian Human Rights Act. You have already heard from my colleague from the Canadian Human Rights Commission. It is important to note that there is significant interplay in the contributions each organization makes towards the resolution of discrimination complaints under the CHRA. However, there are important distinctions to be drawn as well: while the commission’s mandate is multi-faceted and includes a wide range of powers, duties, and functions, the statute has only assigned one main function to the tribunal, and that is the adjudication of complaints. In the context of the Canadian Human Rights Act, this adjudication process is referred to as an inquiry.
An individual who believes that sexual harassment has occurred within the meaning of the Canadian Human Rights Act can file a complaint to this effect with the commission. If the commission believes that an inquiry is warranted, it triggers the adjudicative process by making a request to the tribunal to inquire into the complaint.
The inquiry mandated under the Canadian Human Rights Act has been described as quasi-judicial, which essentially means court-like. Hence, the tribunal has many of the powers and attributes of a court. It is empowered to find facts, to interpret and apply the law to the facts before it, and to award appropriate remedies. The tribunal’s hearings have much the same attributes and structure as a formal trial before a court. The parties before the tribunal lead evidence, call and cross-examine witnesses, and make submissions on how the law should be applied to the facts. The parties who are entitled to appear before the tribunal include the individual who filed the complaint, the complainant; the person alleged to have engaged in the discriminatory practice, meaning the respondent; and the commission, the agency that initiated the inquiry process.
As Parliament assigned to the tribunal only the role of adjudication, it cannot be involved in crafting policy. It has no regulatory role vis-à-vis employment practices in the federal workplace, nor does it have a public advocacy role. These roles are assigned to other bodies.
A number of consequences flow from the court-like structure and focused mandate of the tribunal. Its members are required to maintain a high degree of independence from the executive branch of government—for example, the Treasury Board, the Department of Justice, or HRSDC. Furthermore, to conserve impartiality, it is important for an adjudicator to adopt and retain a position of neutrality with respect to the issues that can and will be debated in the cases that he or she may be called upon to decide.
In the context of the current briefing and the work of this committee, these principles prevent tribunal members, including myself, from issuing opinions on many of the matters that will be discussed in your study of sexual harassment in the federally regulated workplace, which is not to say that tribunal members will never make findings on any of these issues. On the contrary, they have done so frequently, and will be called upon to do so again in the future. However, they must make these findings in the context of their adjudicative mandate, based on the submissions made by parties to a case, along with the evidence led and the applicable legal principle, which leads me to my next topic.
What are the legal principles the tribunal applies to complaints of sexual harassment? How do we define sexual harassment? The answers to these questions originate in our enabling legislation, the Canadian Human Rights Act.
This legislation designates 11 prohibited grounds of discrimination, including discrimination based on sex. It also proscribes roughly 11 discriminatory practices, including the discriminatory practice set out in paragraph (c) of subsection 14(1), which provides that it is a discriminatory practice to harass an individual in matters related to employment on a prohibited ground. I would add that the eradication of sexual harassment was a matter of particular seriousness for Parliament, as evidenced by its being expressly mentioned in subsection 14(2) of the Canadian Human Rights Act.
The legal meaning of harassment generally, and sexual harassment in particular, for the purposes of section 14, has been defined in the jurisprudence of the superior courts, and has been developed by the decisions of the tribunal itself in individual cases.
When a complaint of sexual harassment is referred to the tribunal for an inquiry, the tribunal member, after hearing all of the evidence and arguments, generally has to decide whether the conduct at issue was unwelcome; sexual in nature; sufficiently persistent, repetitive, or severe enough to create a poisoned workplace; and, in certain circumstances, whether the employee had notified the employer of the offensive conduct. If the tribunal determines that the impugned conduct fulfills these criteria, it can issue a number of remedial orders against the person found to have engaged in sexual harassment.
In this last regard, it is worth noting that the respondent parties in sexual harassment complaints typically fall into two categories: the alleged harasser—generally the victim's co-worker or superior who allegedly subjected the individual to the harassment—and/or the employer, who has a legislative duty to exercise all due diligence to prevent harassment and mitigate or avoid its effects, failing which it is held responsible for the harassment.
Where the harassment complaint has been substantiated, orders can be made against either the individual harasser or the employer or both.
Finally, discussion of the tribunal's resolution of complaints would not be complete without mentioning that a significant portion of complaints referred to the tribunal are resolved by tribunal members mediating the complaints to facilitate settlements by parties and that tribunal members have been mediating human rights complaints for well over a decade.
However, it is important to note that we have also adopted special measures to mitigate the effects of any power imbalance that may exist in negotiations between complainants and respondents, which are of particular concern in harassment cases.
Finally, I would like to provide you with some indication of the number of sexual harassment cases at the tribunal and the proportion that they make up of the tribunal's total caseload. Before I do so, there are a number of baseline considerations that should be taken into account.
As has been alluded to, not all federal discrimination matters become complaints filed with the commission. Of the complaints filed with the commission, it is important to realize that only a small subset are referred to the tribunal for an inquiry. Moreover, of the total number of discrimination complaints referred to the tribunal for an inquiry, only a very small portion allege harassment in employment on the grounds of sex. Finally, not all complaints of harassment are found by the tribunal to be substantiated. Some are dismissed at the conclusion of the inquiry because the adjudicator has found that the evidence has not satisfied the legal requirements to prove harassment.
That said, the statistics that follow may be of assistance to the committee.
The commission has referred 600 complaints to the tribunal since 2008, and those are complaints under all headings of discrimination. Of those 600 complaints, 36 received since April 2008 have alleged harassment in matters related to employment and on the prohibited grounds of sex. Those represent 6% of the total referrals.
Perhaps of further interest to the committee as it pursues its study is a breakdown by respondent groups.
Of the 36 complaints I referred to involving harassment, 20 were against federally regulated companies and/or individuals employed therein, i.e., non-governmental entities. That equals 3% of the total referrals to the tribunal.
Nine of those complaints are against federal government and/or individuals therein. They account for 1.5% of the total referrals to the tribunal.
Finally, seven are against first nations and/or individuals employed therein.
In conclusion, I hope this presentation has been of assistance to the committee, and I would be pleased to provide any additional information or answer any questions you might have.
Thank you, Madam Chair.
View Stella Ambler Profile
CPC (ON)
Fair enough. Thank you.
I wonder how often tribunal complaints are referred to a panel. My understanding is that if the case is complex enough, the chairperson will assign it to a panel to conduct an inquiry. Is that true, and at what point is a case sufficiently complex to warrant a panel referral?
Susheel Gupta
View Susheel Gupta Profile
Susheel Gupta
2012-10-16 10:28
In terms of the number of cases that the tribunal has assigned to a panel, our legislation provides for an inquiry to be overseen by either a panel of one or a panel of three. I presume you're asking about a panel of three.
View Brian Jean Profile
CPC (AB)
Merci.
Thank you very much, Mr. Storseth. I appreciate you bringing us forward. When I practised law in Alberta this was quite shocking for me as well. A quasi-judicial body that would make decisions that would impact people basically with what are criminal-type charges and convictions, and with the ability to then put a punishment on them, is in my mind beyond what would be adequate for a quasi-judicial body.
I'm wondering if you have any specific knowledge of the training and expertise of these individuals. I know that it is very difficult for a member of the bar to become a judge. First they must do seven years of university, including three or four years of law school, practise for a minimum of 10 years—and usually more like 20 to 25 years—as an advocate, as a barrister or solicitor, in one of the courts in Canada, and then to go through judicial training school, and of course are bound by precedents of hundreds of years.
What kind of training would this particular body have compared to a judge of, for instance, the Court of Queen's Bench in Alberta?
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